GAJADHAR SINGH Vs. HANWANT SINGH

JUDGEMENT

(1.) THIS second appeal arises out of execution proceedings. The decree-holder is the appellant and the judgment-debtor is the respondent. A crow-objection also has been filed by the respondent-judgment- debtor.

(2.) THE relevant facts, in brief, are as follows: A suit for declaration, demolition of construction and in the alternative for possession was filed by the plaintiff against the defendant. It was filed in the court of District Judge, Bhadohi in 1948 and the same was decided on May 13, 1949. An execution application was filed in the court of Civil and Sessions Judge, Gyanpur in August, 1950. This execution case was subsequently transferred to the court of Munsif, Gyanpur and in the execution proceedings before the Munsif, the judgment-debtor-respondent filed objections under Section 47, Civil Procedure Code. The objections were dismissed by the execution court but on appeal the lower appellate court allowed the same. The lower appellate court, while allowing the appeal, directed that "the delivery of possession made in execution of the decree was not properly made and it is ordered that the appellant is entitled to get back possession of the property. The parties shall bear their own costs of this appeal". The decree-holder felt aggrieved and has come up in the instant second appeal and in support thereof, Sri Kameshwar Nath Tripathi, the learned counsel for the appellant, has made his submission. In opposition, Sri G. P. Bhargava, the learned counsel for the judgment-debtor-respondent, has made his submissions. The cross-objection is to the effect that the lower appellate court erred in holding that the execution court had the jurisdiction to execute the decree and it was prayed that the execution application should have been dismissed on the ground of absence of jurisdiction.

(3.) ON the first point, learned counsel for the judgment-debtor respondent contended that the Civil and Sessions Judge had no jurisdiction to entertain the execution application and the same was bound to be moved before the Munsif. In other words, it is contended that the Civil and Sessions Judge, was neither the court which passed the decree nor the transferee court and a reference has been made to Sections 37, 38 and 39, Civil Procedure Code in this connection. These Sections may be usefully reproduced below:-